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Ho v Loneragan

Ho v Loneragan

Case [2013] WASCA 20 5 February 2013

Civil Litigation & Procedure

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HO -v- LONERAGAN [2013] WASCA 20

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 20
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:114/2011	Heard:	18 OCTOBER 2012
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	5/02/13
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
PDF Version

Parties:	DENNIS CHEELIM HO PHILLIP KUNG JIN LARRY LONERAGAN
Catchwords:	Practice and procedure Magistrates Court Judgment after trial sent to parties by post Delivery of judgment part of proceedings Proceedings required to be conducted in open court Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45 Failure to comply with s 45 Judgment liable to be set aside Judgment effective until set aside
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45
Case References:	Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Daubney v Cooper (1829) 10 B & C 237; (1829) 109 ER 438 Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50 Ho v Loneragan [2011] WADC 133 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 Jackson v Chrisp [2012] WASCA 158 Lednar v The Magistrates' Court [2000] VSC 549 McPherson v McPherson [1936] AC 177 Melville v Phillips (1899) 9 QLJ 114 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 R v Casey; Ex parte Lodge (1887) 13 VLR 37 R v Denbigh Justices; Ex parte Williams [1974] QB 759 Revell v Blake (1873) LR 8 CP 533 Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 Scott v Bennett (1871) LR 5 HL 234 Scott v Scott [1913] AC 417 Seapack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court, Yarram (Unreported, VSC, 12 June 1990) Wandin Springs v Wagner [1991] 2 VR 496

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HO -v- LONERAGAN [2013] WASCA 20 CORAM : PULLIN JA

NEWNES JA

MURPHY JA

HEARD : 18 OCTOBER 2012 DELIVERED : 5 FEBRUARY 2013 FILE NO/S : CACV 114 of 2011 BETWEEN : DENNIS CHEELIM HO

First Appellant

PHILLIP KUNG JIN

Second Appellant

AND

LARRY LONERAGAN

Respondent

ON APPEAL FROM:

For File No : CACV 114 of 2011

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : CURTHOYS DCJ

Citation : HO -v- LONERAGAN [2011] WADC 133

File No : APP 67 of 2010

(Page 2)

Catchwords:

Practice and procedure - Magistrates Court - Judgment after trial sent to parties by post - Delivery of judgment part of proceedings - Proceedings required to be conducted in open court - Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45 - Failure to comply with s 45 - Judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ho v Loneragan

Details

AGLC: Ho v Loneragan [2013] WASCA 20
Case: [2013] WASCA 20
Decision Date

CaseChat Overview and Summary

Ho v Loneragan is an appeal against a decision of the District Court of Western Australia which dismissed an appeal against a judgment of the Magistrates Court. The appellants, Dennis Cheelim Ho and Phillip Kung Jin, sought to appeal against a judgment of Magistrate Boon in the Magistrates Court in which the respondent, Larry Loneragan, was awarded $30,077 in interest for the delay in settlement of the sale of a pharmacy. The appeal was dismissed by Curthoys DCJ on the basis that it was out of time. The appellants appealed to the Court of Appeal of the Supreme Court of Western Australia, contending that the appeal was not out of time because the date of the judgment was when the appellants received the judgment in the post, not the date on which it was given. The Court of Appeal found that the appeal was indeed out of time, as the date of judgment was the date it was given, and that the judgment was effective until set aside. The appeal was dismissed. The Court of Appeal held that although the judgment was not given in open court as required by the Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45, this did not mean that the judgment was void. Instead, the judgment was voidable and had effect unless and until it was set aside. As the appellants had not sought to have the judgment set aside, it remained effective. The Court of Appeal also found that the appellants' argument that the date of the judgment was when it was received by them in the post was not supported by the Act or any other written law. The appeal was dismissed and the decision of the District Court was upheld.

Orders